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Chernoff v. City of New York

September 10, 2008

SCOTT CHERNOFF, PLAINTIFF,
v.
THE CITY OF NEW YORK; NEW YORK CITY POLICE PENSION FUND; MICHAEL D. WELSOME, DIRECTOR NEW YORK CITY POLICE PENSION FUND; RAYMOND KELLY, POLICE COMMISSIONER; JULIUS MENDEL, M.D., MEDICAL BOARD, NEW YORK CITY POLICE PENSION FUND; RICHARD GASALBERTI, M.D., MEDICAL BOARD, NEW YORK CITY POLICE PENSION FUND; ARSEN PANKOVICH, M.D. MEDICAL BOARD, NEW YORK CITY POLICE PENSION FUND, EACH BEING SUED INDIVIDUAL AND IN THEIR OFFICIAL CAPACITIES AS EMPLOYEES OF THE NYPD AND/OR THE NYCPFF, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Sifton United States District Judge

MEMORANDUM OPINION AND ORDER

SIFTON, Senior Judge.

Plaintiff Scott Chernoff ("Chernoff") commenced this action on June 9, 2006 against defendants the City of New York ("City"); the New York City Police Pension Fund (the "Police Pension Fund"); Michael D. Welsome, Director of the New York City Police Pension Fund; Raymond W. Kelly, Police Commissioner; Julius Mendel, M.D., Richard Gasalberti, M.D., and Arsen Pankovich, M.D., of the New York City Police Pension Fund Medical Board; Julie L. Schwartz, Kathleen M. Kearns, Louis W. Luciani, Carl Princi, Walter Cacaj, and John Doe Police Officers # 1-4, of the New York Police Department ("NYPD") Advocate's Office, each sued in their individual and official capacities. The following claims remain to be determined:*fn1 (1) disability discrimination claim in violation of the Americans with Disabilities Act;*fn2 (2) disability discrimination claim in violation of 42 U.S.C. § 1983*fn3 against the individual defendants in their individual and official capacities; (3) claim for violation of the right to procedural and substantive due process of law in violation of 42 U.S.C. § 1983; (4) claim for violation of the right to procedural and substantive due process of law in violation of the fifth amendment; (5) disability discrimination claim against the City for violation of New York State Executive Law 296;*fn4 and (6) disability discrimination claim against the City for violation of New York City Administrative Code § 8-107(1)(a).*fn5 Presently before this Court is defendants' motion for summary judgment with respect to the claims and defendants that remain. For the reasons set forth below, defendants' motion is granted in part and denied in part.

Background

The following facts are drawn from the submissions of the parties in connection with this motion. Disputes are noted.

Plaintiff Chernoff commenced employment as a New York City police officer in 1995. For purposes of calculating his pension, his starting date was recorded as February 9, 1995, taking into account his prior service as a New York City Housing Police Officer. Defendants' Exhibit ["Def. Exh."] 7.

Between 1997 and 2005, plaintiff worked in the Identification Service of the NYPD as a fingerprint examiner, except for a six-month period in the Latent Print Section between 1999 and 2000. Chernoff Deposition ["Chernoff Dep."] at 40-43, Plaintiff's Exhibit ["Pl. Exh."] D; Def. Exh. 8. Plaintiff worked in addition as a security guard for other employers on his days off. Id. at 78-82. The parties dispute the dates of his work as a security guard. According to the defendants, plaintiff worked as a security guard until late 2004 or 2005. Plaintiff states that he stopped working as a security guard in November 2002, but later worked as a security guard sporadically for a brief period of time in 2004. Id.

Plaintiff states, and defendants dispute, whether on September 11, 2001, he was a "first responder" to the World Trade Center attacks. Chernoff Affidavit ("Chernoff Aff.") ¶ 11. According to defendants, plaintiff reported to One Police Plaza that morning and remained there for the duration of his shift. Chernoff Dep. at 96; Def. Reply Exh. 2. Thereafter, defendants allege that plaintiff worked at One Police Plaza on September 12 and 13, 2001 and spent his free time walking around Ground Zero. Id. at 93-94, 117-23. Plaintiff states, and defendants dispute, whether plaintiff was assigned to Ground Zero approximately 27 times between December 2001 and May 2002. Id. at 125, 129; Chernoff Aff. ¶ 31. According to defendants, plaintiff volunteered to provide security around the perimeter of the site.

Chernoff Dep. at 125.

At some time in the fall of 2001, plaintiff began to feel the effects of his exposure to the September 11 disaster and, in November 2002, plaintiff voluntarily surrendered his weapons. Id. ¶ 87.

On December 26, 2002, plaintiff called the NYPD Early Intervention Unit expressing suicidal thoughts. He was taken to Columbia Presbyterian Hospital for psychiatric evaluation, hospitalization, and treatment. NYPD Psychological Evaluation Unit Note, Def. Exh. 9; Columbia Presbyterian Hospital Physician Admission Assessment, Def. Exh. 10. According to defendants, but disputed by plaintiff, plaintiff reported to the hospital that his feelings of suicide, depression and panic attacks were on account of the break-up of his marriage. Id.

In January 2003, after plaintiff was discharged from the hospital, the NYPD Psychological Evaluation Unit began to monitor plaintiff's mental health. February 11, 2004 Report of Dr. Catherine Lamstein ("Lamstein Report") at 1, Def. Exh. 19.

In January 2003, plaintiff was placed on restricted duty after allegedly threatening his estranged wife and her new boyfriend. NYPD Modified Assignment Report, Pl. Exh. F; Def. Exh. 11.

On March 7, 2003, plaintiff was suspended for thirty days after being arrested while off-duty for petit larceny and the date of his appointment for pension purposes was changed to March 12, 1995 to reflect this suspension. NYPD Arrest and Suspension Report, Def. Exh. 12; Police Pension Fund Letter, Def. Exh. 13.

Shortly thereafter, plaintiff was admitted to Columbia Presbyterian Hospital because he was suicidal. Chernoff Aff. ¶ 48; Lamstein Report at 4.

On March 10, 2003, the NYPD issued charges and specifications against plaintiff on account of the March 7, 2003 arrest, which were served on plaintiff on April 7, 2003. March 7, 2003 Charges and Specifications, Def. Exh. 14.

In July 2003, plaintiff's then girlfriend alleged that he was involved in a domestic dispute with her. Internal Affairs Bureau Investigation Report, Def. Exh. 15.

On September 17, 2003, plaintiff was admitted to Columbia Presbyterian Hospital on account of suicidal ideation, due in part to plaintiff's learning that he was likely to be terminated on account of the criminal charge. Dr. Benjamin McCommon Treatment Notes, Def. Exh. 16; Pl. Exh. L.

Dr. Benjamin McCommon, a Columbia Presbyterian psychiatrist who treated plaintiff, diagnosed him as suffering from "Major Depressive Disorder, Alcohol Abuse [with] a concern for Substance Induced ...


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